Excerpt: ... Proc., §1060.) Cross‐Complainant Wheeler's 7th cross‐claims seeks a declaration that Cross‐Defendant Copp owes it a duty to defend under its contractual agreement that contains an indemnity clause (¶¶44‐48). The law provides for specific rules on interpreting indemnity contracts unless a contract provides otherwise. If contractual indemnity exists, the indemnitee is entitled to recover his defense costs. (Civ. Code, §2778, subd. (3)....

Excerpt: ...equest is therefore $92,688.75 plus expenses of $6,298.99.1 In determining the reasonableness of the fees, the court applies the lodestar method, i.e., multiplying the number of hours reasonably worked by a reasonable hourly rate. (Flannery v. Prentice (2001) 26 Cal.4th 572, 584; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.) The Court can reduce hours that appear unreasonably inflated. (Chavez v. Cit...

Excerpt: ... is to compel a trial Page | 2 on the merits than when the default judgment is allowed to stand. [Citation.] Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. [Citation.] In the present case, [defendant] promptly moved to have the default judgment set aside once he learned of it. The trial court's order granting relief was within its sound d...

Excerpt: ...) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Page | 2 However, during the Governor's declared state of emergency related to the pandemic, Code of Civil Procedure section 599 provides that “[n]otwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitr...

Excerpt: ...ce of the demurrer. However, even if service was defective for some reason, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] Page | 2 This rule applies even when no notice was given at all.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Since Whisler substantively opposes ...

Excerpt: ...in Avant! and others, as cited by each side, a stay will cause a delay but less so than if Defendant were merely the subject of an investigation. There is a Page | 2 risk of prejudice to Plaintiff with respect to third party testimony, as memories may fade and evidence may otherwise become stale. Defendant will be prejudiced if a stay is not granted because he will be forced to choose between giving up his Fifth Amendment right to remain silent o...

Excerpt: ...the above section requires it to be filed. This must be addressed first. 1. 1 st & 3rd causes of action: Breach of Contract and Implied Covenant Defendant Hall challenges the contract‐based causes of action on the ground he is not a party to the purported contract. For pleading a breach of contract and implied covenant causes of action, a contract must exist. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1176; Smith v...

Excerpt: ...(Mot. 6:1‐4.) In opposition, the City argues bifurcation would be improper because Plaintiff's claims of dangerous condition of public property against the two defendants are inextricably intertwined. The City also correctly points out that the issue of ownership and control is not as clear‐cut as argued by Caltrans. In response to a request for admission (RFA) asking Caltrans to admit it “controls” the accident location, Caltrans respond...

Excerpt: ...erence that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (§ 36, subd. (e).) This decision “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.) Factors to be considered include the condition of the court's calendar, dilatory conduct by the plaintiff...

Excerpt: ... issue, this case was transferred to Department S24. (See Minutes 3/30/21.) On November 24, 2021, Plaintiff filed this motion for summary judgment of its complaint. On December 14, 2021, while its MSJ was pending, Plaintiff file a motion for leave to file an amended complaint, which the Court granted on January 19, 2022. Now at issue is Plaintiff's MSJ. Defendant filed a timely opposition. Plaintiff filed a timely reply. Defendant's Request for C...

Excerpt: ...ano only. The elements of a breach of contract cause of action are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731.) Defendants contend the first cause of action for breach of oral contract fails as to Arellano because no information is given as to the verbal agreement she specifically entered into with...

Excerpt: ...cific adverse actions were endured, and a causal link. In California the Legislature has determined employment without a specified term “may be terminated at the will of either party…” (Lab. Code, § 2922.) However, “an employer's traditional broad authority to discharge an at‐will employee ‘may be limited by statute ... or by considerations of public policy.' [Citation.]” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172....

Excerpt: ...(1992) 6 Cal.App.4th 1266, 1271, 8 Cal.Rptr.2d 587, fn. omitted.) In a motion to compel arbitration, ‘the party seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any defense, such as unconscionability. [Citations.]' [Citations omitted] ‘In California, [g]eneral principles...

Excerpt: ...on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457, citing Gov. Code, § 815.) Government Code section 815, subdivision (a) provides: “Except as otherwise provided by statute: [P] (a) A public entity is not liable for Page | 2 an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” “In view of the fact that tort causes of action against pub...

Excerpt: ...uance of preliminary injunctions at any time before judgment upon a verified complaint or upon affidavits that show satisfactorily that sufficient ground exists. Nevertheless, a preliminary injunction is a drastic and extraordinary remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. (Mazurek v. Armstrong (1997) 520 U.S. 968, 972.) A preliminary injunction is appropriate if irreparable harm wi...

Excerpt: ...e claim fails because Cohen did not take or retain Braswell's property for a wrongful use, with intent to defraud, or by undue influence. Issue No. 3: Braswell has not presented evidence to support a finding of punitive damages. Fourth Cause of Action – Promissory Fraud The Complaint alleges Sullivan and Cohen falsely promised Braswell that they would rebate 50% of their earned commissions over the lifetime of the policy to Braswell. But they n...

Excerpt: ...ues possession is not an issue, as Defendant has agreed to vacate the premises Page | 2 as expeditiously as controlling law and regulations permit. Defendant argues the issue of past rent due will be addressed on the Federal Action, requiring abatement of this action. A brief description of the inadmissible extrinsic evidence is necessary to understand Defendant's arguments. Defendant asserts its own former CEO, Bruce Hebets, entered into the lea...

Excerpt: ...ccurred while Jermane was crossing Coalinga Rd from North to South on the east side of the intersection with Cahuenga. UF #2 (undisputed). 1 Defendant repeats some of the facts with a different fact number. The first fact number used is referenced herein. In 2018, the school had two pick‐up/drop‐ off sites on the campus. The third site was for bus use only. The school does not have any designated drop‐off sites off‐campus. The first dismi...

Excerpt: ...chez”) operated a Mexican Restaurant in one of the restaurant spaces at the Subject Property. (UMF, #9.) On November 4, 2020, MG Petroleum caused a 30‐day notice to quit (“30 Day Notice”) to be served on Sanchez based on its understanding that the fixed term lease expired on October 31, 2019 and the parties entered into a month‐to‐month tenancy. (UMF, #14.) On or around January 14, 2021, Sanchez filed a verified answer to the Unlawful...

Excerpt: ...action are based upon allegations that Explorer breached its duty to provide the Hendersons a defense in the underlying lawsuit brought against them by Blackburn. The causes of action are also based upon Explorer's failure to settle the underlying case within the policy limits. Both causes of action are governed by the four‐year‐statute of limitations under Code of Civil Procedure section 337, subdivision (a). As argued by Plaintiffs, an acti...

Excerpt: ...urred on November 19, 2018 and, as a result of her injuries, Grdjan filed suit on September 3, 2020, against CSU's Board of Trustees and TK Elevator Corporation (TK), though the pair were erroneously sued under different names. Through the operative first amended complaint (FAC), which was filed on November 24, 2020, Grdjan asserts claims for dangerous condition of public property and negligent infliction of emotional distress, both of which esse...

Excerpt: ...Justino Montiel I. DISCUSSION Hitachi moves to strike Plaintiff's punitive damage allegations, as well as a list of prior product liability lawsuits regarding alleged defects with the nail gun. I recommend the Court deny the Motion to Strike. A. Statement of Law “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof….” (Code Civ. Proc., § 4351 .) “The cou...

Excerpt: ...disputed Material Facts and Separate Statement of Additional Facts in opposition to the MSA filed by Cohen. Plaintiff informs the Court that after the Court continued the hearing date on Cohen's MSA to October 27, 2021, Plaintiff took the deposition of non‐party witness, Chris Ebert (Ebert), the controller and chief financial officer for Plaintiff's company between November 2016 and August 2019. Ebert testified he was present at several meeting...

Excerpt: ...erence with all parties and the Court pursuant to CCP 2016.080. The purpose of the conference is to try and resolve the discovery issues without the necessity of a motion. At the conference, the issues of the discovery dispute will be discussed as well as possible referral of the case out to Judicial Reference (Hereinafter JR). Timely objections to JR will be heard at this time only, absent change in circumstances ( Be prepared with appropriate f...

Excerpt: ...of the trial court. [Citations.] And courts are much more critical of proposed amendments to answers when offered after long unexplained delay or on the eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the other party. [Citations.]' [Citation]” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; see also WEIL & BROWN, CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL [The Rutter Group] ¶6:643). W...